Appeal brought on 30 January 2019 by the European Commission against the judgment of the General Court (Fourth Chamber) delivered on 21 November 2018 in Case T-587/16, HM v European Commission

(Case C-70/19 P)

Language of the case: German

Parties

Appellant: European Commission (represented by: T.S. Bohr and G. Gattinara, acting as Agents)

Other party to the proceedings: HM

Form of order sought

The appellant claims that the Court of Justice should:

set aside the judgment of the General Court of 21 November 2018 in Case T-587/16, HM v Commission;

refer the case back to the General Court;

reserve the costs of the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

The Commission relies on two grounds of appeal.

The first ground of appeal, which consists of three parts, alleges that the General Court erred in law as regards the division of competences between the selection board and the European Personnel Selection Office (EPSO).

In the first part of that ground of appeal, the Commission submits that the General Court erred in its legal categorisation of the contested measure, that is to say, EPSO’s decision of 17 August 2015 not to submit the appellant’s request for review to the selection board on the ground of delay. That notification was made in the context of the competence conferred on EPSO by Section 3.1.3. of the General Rules governing competitions to conduct all correspondence with candidates.

In the second part, the Commission argues that the General Court erred in law in its interpretation of the General Rules. Section 3.4.3. of those General Rules should not to be read only in conjunction with Section 3.1.3., but also in the light of the wording and purpose of Section 3.4.3., which grants EPSO the competence to conduct the internal review procedure.

The third part alleges an error in law in the interpretation of Article 7 of Annex III to the Staff Regulations. The notification in question constitutes an administrative measure to ensure the application of uniform standards in competitions in accordance with the first paragraph of that article. It also corresponds to EPSO’s role of assisting the selection board, as noted by the General Court in the judgment in Case T-361/10 P, Commission v Pachtitis. 1

The second ground of appeal alleges that the General Court erred in law in the interpretation of the plea concerning the lack of competence of the author of the measure. In the present case, the General Court failed to examine whether, if the error concerning lack of competence had been corrected, a measure with the same or a different content would have been taken. In the absence of such an examination, the General Court could not annul the contested measure.

____________

1 ECLI:EU:T:2011:742.